Appeal against conviction for possession of illicit arrack. High Court acquitted appellant due to absence of test identification parade for witnesses with fleeting glimpses and unexplained delays in producing samples, rendering them valueless.
The judgment of conviction and sentence is set aside; accused is found not guilty, acquitted, and set at liberty.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
MONDAY, THE 28TH DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA,
1944
CRL.A NO. 1670 OF 2008
AGAINST THE JUDGMENT IN SC 667/2003 OF ADDITIONAL
SESSIONS COURT (ADHOC)-III, THALASSERY
CP 254/2002 OF JUDICIAL MAGISTRATE OF FIRST
CLASS ,KUTHUPARAMBA
APPELLANT:
SEBASTIAN
PUNNERI HOUSE, KOLAYAD AMSOM,, PUTHALAM.
BY ADV SRI.C.P.PEETHAMBARAN
RESPONDENT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH
COURT OF KERALA, ERNAKULAM.
OTHER PRESENT:
BY SMT S REKHA,SR GP
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 28.11.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
CRL.A NO. 1670 OF 2008
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JUDGMENT
Aggrieved by the judgment dated 04.07.2008, passed by the Additional Sessions Court [Adhoc-III], Thalassery in Sessions Case No.667 of 2003, the accused has preferred this appeal. The appellant was convicted under Section 8(2)of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs. One Lakh.
the Sessions Court from where it was made over to the
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CRL.A NO. 1670 OF 2008
trial Court. On the appearance of the accused charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, he came to be tried by the trial Court for the aforesaid offence.
the prosecution, statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder.
CRL.A NO. 1670 OF 2008
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(1) The prosecution failed to establish the identity of the person who was allegedly
carrying the contraband substance.
(2) The prosecution failed to establish that the contraband seized from the scene of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory.
The seizure was effected by the Sub Inspector of Police, Peravoor. According to the prosecution, on seeing the Police party, the person who was carrying the contraband
CRL.A NO. 1670 OF 2008
substance ran away from there. He could not be apprehended. The prosecution has no case that the Detecting Officer and other official witnesses had any previous acquaintance with the accused. Going by the evidence of the Detecting Officer and other official witnesses, they had only fleeting glimpse of the person who ran away from the scene of occurrence. They identified the accused in the box in the year 2008 after a long lapse of six years. They had no opportunity to see the accused after the incident. No test identification parade was conducted.
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CRL.A NO. 1670 OF 2008
testimony regarding the identification of an accused for the first time in Court [vide: Kanan and others v. State of Kerala [AIR 1979 SC 1127], Jameel v. State of Maharashtra [AIR 2007 SC 971]. Raja v. State by Inspector of Police [AIR 2020 (SC) 254], State (Delhi Administration) v. V.C. Shukla and another [AIR 1980 (SC) 1382], Mohd. Abdul Hafeez v. State of AP [AIR 1983 (SC) 367]. So on this ground alone the prosecution must fail.
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properties including the sample before the Court.
on the question of delay in production of properties a Division Bench of this Court held thus:
“8. We, therefore, answer the reference as follows: It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.”
In Ravi's case (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property.
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lead to the conclusion that tampering with samples could not be ruled out.
In the result,
(i) The Appeal is allowed ;
(ii) The judgment of conviction and sentence passed
CRL.A NO. 1670 OF 2008
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against the accused is set aside ;
per law.
Sd/-
K. BABU, JUDGE
kkj
2 issues framed by the court
Whether conviction is safe without test identification parade given first time court identification by witnessing police officers who had fleeting glimpses of the accused.
Whether unexplained delay in production of seized contraband samples before the court defeats the prosecution case on grounds of tampering possibility.
Colour shows how this judgement treated each authority
Kanan and others v. State of KeralaReferred¶46
Kanan and others v. State of Kerala [AIR 1979 SC 1127] · Who else cites this
Jameel v. State of MaharashtraReferred¶46
Jameel v. State of Maharashtra [AIR 2007 SC 971] · Who else cites this
Raja v. State by Inspector of PoliceReferred¶46
Raja v. State by Inspector of Police [AIR 2020 (SC) 254] · Who else cites this
State (Delhi Administration) v. V.C. ShuklaReferred¶46
State (Delhi Administration) v. V.C. Shukla and another [AIR 1980 (SC) 1382] · Who else cites this
Mohd. Abdul Hafeez v. State of APReferred¶46
Mohd. Abdul Hafeez v. State of AP [AIR 1983 (SC) 367] · Who else cites this
Ravi v. State of KeralaRelied on¶51
Ravi v. State of Kerala [2011 (3) KHC 121]
SEBASTIAN
STATE OF KERALA
K. BABU
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court